Matter of life or death

Argument against capital punishment is heating up in lieu of DNA testing

By Elaine Jarvik , Deseret News

Published: Saturday, Sept. 17 2005 12:00 a.m. MDT

(Jessica Berry, Deseret Morning News)

Gary Gauger had gotten up late the morning his parents were killed. It wasn't until the next morning, going into the garage to get a motorcycle part for a family friend who had come by, that he discovered his father lying on the floor, his throat slit. Later than morning, after he called 911, his mother was found slain too.
Police in McHenry County, Ill. arrested Gauger. A judge later gave him a death sentence  for murders it turns out were committed by members of a local motorcycle gang.
Gauger's case is one more cautionary tale, say opponents of the death penalty. As for Gauger himself, released from prison in 1996 after serving 3 1/2 years, wrongful convictions like his are only one reason to abolish capital punishment.
"It's a barbaric practice," he says about killing people who have killed people. "It reduces us to the killer's level. We're nothing but a gang looking for retribution."
Gauger will be in Utah next week to speak at a death penalty symposium at Utah Valley State College. The event, which runs Monday and Tuesday, Sept. 19 and 20, will explore shifting public opinion about the death penalty, and to detail reforms that could reduce the number of wrongful convictions.
Nationally, support for the death penalty has fallen in the past decade  from 80 percent in 1994 to 74 percent in 2005, according to Gallup polls. Other polls have put the number even lower, in the two-thirds range.
In Utah, where the firing squad execution of Gary Gilmore in 1977 marked the national reinstatement of the death penalty, we're more likely to want an eye-for-an-eye: A 2003 Deseret Morning News-KSL poll found that 78 percent of Utahns favor the death penalty.
But nationally, when poll respondents are given a choice  the death penalty or life in prison without parole (an alternative now available in all 32 states that permit executions)  support for the death penalty drops considerably: to 39 percent according to a 2005 CBS poll; 56 percent according to Gallup.
Although the numbers indicate a public in flux, it's clear that many Americans still can't imagine life without the death penalty despite the fact that every major religion but two has taken a stand against putting killers to death, says Michael Radelet, chair of the department of sociology at the University of Colorado at Boulder.
"It's not just the likely subjects, like the Quakers," says Radelet, who will also participate in the UVSC symposium. "It's the Presbyterians and Lutherans and Methodists and American Baptists." At the time of Gary Gilmore's execution nearly three decades ago, "there were really no major religions opposed to the death penalty," he says. As even more proof of the change, Radelet says, he was in a debate with evangelical preacher Pat Robertson a few years ago and "much to my surprise, he came out calling for a moratorium on the death penalty."
Only the Southern Baptists and The Church of Jesus Christ of Latter-day Saints, Radelet says, have not come out publicly against capital punishment. The Southern Baptists are silent on the issue, he says. The LDS Church in 2003 issued a statement that it "regards the question of whether and in what circumstances the state should impose capital punishment as a matter to be decided solely by the prescribed processes of civil law. We neither promote nor oppose capital punishment."
Among Catholics, according to a Zogby poll, only 48 percent now support the death penalty  and the number drops for regular churchgoers, compared to those who attend church infrequently. The poll was released last March, when the U.S. Conference of Catholic Bishops announced a new campaign to end the use of the death penalty.
Wrongful convictions, often proved by DNA analysis, are one reason why public opposition to capital punishment is growing, even among conservatives, says Radelet.
But there are other reasons, too, he says. For religions, he says, there is the matter of forgiveness. And capital cases, with their parade of high-paid experts and the inevitable round of appeals, are five to seven times as expensive as keeping an inmate in prison for life, he says. And, too, there is conservative skepticism of big government, including the court system.
"If the government can't build highways or fill in potholes in highways," this arguments goes, "then we have to be skeptical about the ability of government to make God-like life or death decisions" about a person's innocence, he says.
Radelet helped orchestrate a study of capital punishment for then-governor George Ryan of Illinois, who called for a moratorium on the death penalty in his state when DNA analysis proved the innocence of 13 people on death row. "Our study revealed massive regional and racial variations" in death penalty sentences, he says. "You were more likely to get death if the homicide victim was white."
Since 1989, says University of Utah law professor Daniel S. Medwed, 162 defendants nationally have been exonerated by DNA testing. "So the foundation on which the criminal justice system rests has been rocked."
And DNA is only the tip of the wrongful convictions iceberg, says Medwed, who will participate in the UVSC symposium. Only 10 percent to 20 percent of criminal cases have any biological evidence at all, he says.
"I think it's created a sea change in the way a lot of people have viewed the death penalty," he says. The death penalty, after all, is irrevocable. Find out later the person is innocent, after you've already administered a lethal injection, and there's no way to rectify the mistake.
Wrongful convictions have forced lawyers and academics to look at what sometimes goes wrong. The culprits include mistaken eye-witness identifications, false confessions, jailhouse informants, ineffective defense counsel, police misconduct, forensic fraud and junk science, Medwed says.
Typically, eyewitnesses are asked to look at a six-person lineup or a series of six photos. "If you look at a group of six and you're not told the perpetrator may not be there, you often make a relative judgment and pick the person who most closely resembles the person you saw," he says. "So one reform is to abandon that approach."
Instead, witnesses would be asked to look at one photo or one person at a time, and to decide yes or no, making an absolute judgment each time. Studies, he says, suggest that this can minimize misidentifications by as much as 50 percent, although some in the law enforcement community have taken issue with those studies.
Videotaping investigations could help eliminate false confessions like the one police claimed Gary Gauger gave after the murder of his elderly parents in 1993, Medwed says. And increasing sanctions against police and prosecutors who are found guilty of misconduct would also help.
Gauger blames police misconduct for his arrest and conviction in his parents' slayings. "The police perjured themselves about 150 times at my trial," Gauger said recently in a phone interview from the Illinois organic farm where he grows heirloom tomatoes. "The police tend to take the easiest way out. They focus on a primary suspect, and they actively discourage and ignore other leads." He accuses the police of making up details about his involvement and his "confession."
And, too, there's the case of David Wong, a New York prisoner who spent 10 extra years in prison after being convicted of a jail yard murder he didn't commit. Medwed will discuss Wong in a presentation called "Anatomy of a Wrongful Conviction."
"There are cases like Gary Gauger's, where you look at him and your heart just breaks," says Medwed. "But oftentimes the folks who have been wrongfully convicted have a criminal record. So one obstacle a lot of us in the reform movement want to overcome is that many of these stories have a catch." But just because an innocent person may have a sketchy past, he says, "doesn't means they deserve less protection. It's a slippery slope between those kinds of cases and Gary Gauger."